Bombay High Court
Ashok @ Dilip S/O. Mohan Rathod vs The State Of Maharashtra on 20 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:26818-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 473 OF 2017
Ashok @ Dilip s/o Mohan Rathod
Age 27 yrs. Occ. Agri.,
r/o Bothi Tanda, Tq. Chakur,
District Latur. ... Appellant
Versus
The State of Maharashtra,
Through Inspector Police Station,
Chakur, Tq. Chakur, Dist. Latur. ... Respondent
WITH
CRIMINAL APPEAL NO. 431 OF 2017
1. Mohan s/o Dhansing Rathod,
Age 55 yrs. Occ. Agri.,
r/o Bothi Tanda, Tq. Chakur,
Dist. Latur.
2. Anjana w/o Mohan Rathod,
Age 50 yrs. Occ. Labour,
r/o Bothi Tanda, Tq. Chakur,
Dist. Latur.
3. Chaya w/o Govind Jadhav,
Age 20 yrs. Occ. Labour,
r/o Bothi Tanda, Tq. Chakur,
Dist. Latur. ... Appellants
Versus
The State of Maharashtra
Through Inspector Police Station,
Chakur, Tq. Chakur, Dist. Latur. ... Respondent
.....
Mr. U. B. Bilolikar, Advocate h/f Mr. B. V. Patwari and Mr. S. N.
Lavekar, Advocates for the Appellants in both Appeals.
Mr. S. D. Ghayal, APP for Respondent-State in both Appeals.
.....
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CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
Reserved on : 12.12.2023
Pronounced on : 20.12.2023
JUDGMENT [ABHAY S. WAGHWASE, J.] :
1. Criminal Appeal No. 473 of 2017 by convict Ashok and
Criminal Appeal No. 431 of 2017 by convicts Mohan, Anjana and
Chaya are arising out of the judgment and order of conviction
awarded by learned Additional Sessions Judge-3, Latur dated
14.08.2017 in Sessions Case no. 91 of 2015. Vide said judgment, all
appellants are held guilty for charge under Sections 302, 201 r/w 34
and 203 r/w 34 of the Indian Penal Code [IPC], respectively.
2. Chakur police station charesheeted all accused, namely, Mohan,
Ashok, Anjana and Chaya on the premise that deceased Govind had
been to attend marriage at his in-laws' place at Bothi Tanda on
28.05.2015. There, on 03.06.2015, quarrel took place between
deceased and accused persons which resulted into assault on
deceased by accused no.2 Ashok by means of iron pestle and fist and
kick blows by remaining accused. The occurrence was seen by PW7
Shivaji, who is neighbour of accused. Thereafter, dead body of
deceased was found in a passenger train on 04.06.2015. Initially AD
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was registered. PW13 Dr. Sachin Darandale, coroner/autopsy
surgeon, who conducted postmortem, issued opinion regarding cause
of death as "head injury associated with blunt trauma over chest" and
resultantly, after being challaned, vide Exhibit 15 charge was framed
and explained and the same was denied by all accused persons.
Consequently, trial was undertaken by learned Additional
Sessions Judge, who examined evidence of 17 witnesses adduced by
the prosecution as well as documentary evidence relied by
prosecution. On appreciating the same and on hearing both sides,
learned trial Judge held accused Ashok to be guilty of offence under
Section 302 of IPC and all accused, including accused Ashok, to be
guilty of offence under Sections 201 r/w 34 and 203 r/w 34 of IPC
and awarded sentence as spelt out in the operative part of the
judgment.
Now exception is taken by all convicts by filing above distinct
appeals which being heard on the same day and being answered by
learned APP, are decided together herewith.
3. In support of its case, prosecution seems to have adduced
evidence of in all 17 witnesses. Their role and status can be
summarized as under :
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PW1 Satish Mehare is the pancha to recovery of dead body vide
Exhibit 32 as well as seizure of clothes of deceased vide
seizure panchanama Exhibit 33.
PW2 Informant Dagdu Jadhav is father of deceased Govind. He
lodged report Exhibit 50.
PW3 Vasant Rathod has acted as pancha to spot panchanama and
seizure of iron pestle (Article A) vide Exhibit 55.
PW4 Laxman Jadhav is brother of deceased Govind.
PW5 Babu Jadhav allegedly heard about death of Govind and
claims to have informed accordingly to PW2 Dagdu.
PW6 Keshav Rathod is the person who telephonically informed
PW5 Babu about death of Govind.
PW7 Shivaji Jadhav is neighbour of accused persons and he claims
to have witnessed quarrel between deceased and accused
persons on 03.06.2015 and about Ashok assaulting deceased
with iron pestle.
PW8 Vaijinath Sanmukhrao, Police Head Constable, Chakur Police
Station, who registered missing report Exhibit 67 lodged on
05.06.2015 by accused Chaya i.e. wife of deceased.
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PW9 Jeevan Rajgirwad, Police Head Constable, Chakur Police
Station, who conducted inquiry about the missing report no.
19/2015.
PW10 Sachin Rathod is relative of deceased and at Ghati Hospital,
Aurangabad, he identified dead body to be of Govind.
PW11 Syed Jafar, Police Havaldar posted at Railway Police Station,
Aurangabad who inquired into the AD No. 24/2015.
PW12 Rajkumar Chavan is relative of accused Mohan.
PW13 Dr. Sachin Darandale is the autopsy doctor, who conducted
postmortem on 05.06.2015 and issued provisional cause of
death certificate Exhibit 83 and postmortem report Exhibit 84,
however opinion was reserved for want of C.A. reports. On
22.09.2016, vide Exhibit 87, he issued final cause of death as
"Head injury associated with blunt trauma over chest".
PW14 Shantaram Dambale, API, attached to Railway Police Station,
Aurangabad, who registered crime by 0 number and
forwarded all papers to Chakur Police Station.
PW15 Waman Jadhav is brother of accused Anjana.
PW16 Meerabai Jadhav is sister of accused Anjana.
PW17 Shivdas Lahane, API, Chakur Police Station is the
Investigating Officer [IO].
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SUBMISSIONS
ON BEHALF OF APPELLANTS :
4. In support of relief, learned counsel for the appellants would
point out that there is apparently false implication and there being no
direct evidence, case is rested on circumstantial evidence. According
to him, the only circumstance relied seems to be last seen together,
but there is no trustworthy, reliable evidence. He brought to our
notice the date of deceased Govind leaving his place Hanmantwadi
Tanda, i.e. 28.05.2015, and that deceased was found dead on
04.06.2015, that too in a railway at Aurangabad Railway Station.
According to him, there is no evidence even on last seen together.
Further, according to him, there are no independent witnesses and
only interested witnesses are examined and are also used as panchas.
That, important witnesses are not examined. According to him,
prosecution utterly failed to prove motive. That, learned trial Judge
has not appreciated the evidence as required by law and has reached
to erroneous conclusion and even findings reached at are not
supported by sound reasons and so he prays for indulgence at the
hands of this court by allowing the appeals.
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ON BEHALF OF STATE :
5. Per contra, learned APP pointed out that here is a case of direct
evidence. According to him, PW7 Shivaji, an independent witness, has
been examined by prosecution and he has testified about seeing
quarrel as well as assault and that this witness had also intervened to
separate deceased. He has deposed to that extent. Deceased was seen
taken by appellants in their house and thereafter deceased was not
found alive. Therefore, accused persons being custodians of deceased
who was staying with them and deceased having found met with
unnatural death, they are answerable, but as no explanation is
coming from their side and in the light of availability of evidence of
PW7 Shivaji, learned trial Judge has rightly accepted the case of
prosecution as cogently proved. There is recovery of article. Autopsy
doctor has confirmed death to be homicidal one. Therefore here,
there is both, direct as well as circumstantial evidence and so, it is his
submission that, no fault can be found in the appreciation or findings
and judgment authored by learned trial Judge and so he prays to
dismiss the appeals.
6. This Court, while exercising powers under Section 374 of the
Code of Criminal Procedure [Cr.P.C.], is called upon to re-appreciate,
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re-analyze and re-examine entire oral and documentary evidence
adduced by prosecution in trial court. In the light of charge under
Section 302 of IPC, we deem it fit to first get ourselves ascertained
whether death of Govind is proved to be homicidal.
7. Evidence of autopsy doctor PW13 needs to be appreciated for
such ascertainment and therefore we have re-examined his evidence,
who is examined at Exhibit 82. He claims that on 05.06.2015, he
conducted autopsy and noted both, external as well as internal
injuries which are as under :
External injury : -
Spectacle haemotomma present over right eye, reddish
blue in colour.
Internal injuries : -
Head :
1) Under scalp haematoma of size 8 cm x 8 cm, present
over left posterior parietal and occipital region,
reddish in colour.
2) Duramater was intact, congested and tense. Diffuse
thin film of subarachnoid haemorrhage over left
frontal temporal, parietal and occipital regions,
reddish in colour.
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Thorax :
1) Haemotoma of size 11 cm x 5 cm x 1 cm spreading
irregularly over midline of chest, sternum region,
about 100 CC, reddish in colour.
He initially claimed that he merely issued provisional cause of
death certificate and reserved his opinion till receipt of CA report.
According to him, police obtained his opinion by raising query after
confronting him with the article pestle and on examining the same, he
claims to have issued opinion Exhibit 86. Further, according to him,
injuries mentioned in column nos. 19 and 20 of the postmortem
report can be caused by hard and blunt weapon and as such, injuries
are possible by said weapon or similar type of weapon. He also
answered that injuries noticed by him were ante-mortem in nature.
He deposed about issuing final cause of death certificate to the police
on request on 22.09.2016 recording cause of death as "Head injury
associated with blunt trauma over chest". He identified the final cause
of death certificate Exhibit 87.
Above witness in cross has answered that he is unable to state
whether article weapon examined by him had any blood stains. He
answered that injuries noticed on the dead body are possible by
throwing or holding hard and blunt impact and that death might have
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been caused due to any one of the two injuries noted by him in
postmortem report. He further answered that on the basis of C.A.
report, he issued final cause of death certificate.
8. Therefore, above material indicates that after dead body was
brought for autopsy on 04.06.2015, initially only provisional cause of
death certificate Exhibit 83 was issued by PW13 autopsy surgeon,
reserving opinion and final cause of death certificate seems to be
issued on 22.09.2016. However, charge is already shown to be
framed on 03.08.2016 and explained to the accused persons, which is
surprisingly much prior to the issuance of final cause of death
certificate Exhibit 87. Be it so. Above evidence of PW13 autopsy
surgeon is found to be patently silent about death to be homicidal one
or injury to be sufficient in the ordinary course of nature to cause
death and therefore issue of mode and nature of death has patently
remained unanswered.
9. Now let us examine and analyze the other evidence i.e. oral
evidence adduced by prosecution in trial court.
10. Circumstance of last seen together seems to have been pressed
into service by prosecution in trial court. Therefore, we wish to
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examine the prosecution evidence to ascertain whether said
circumstance is cogently proved.
11. PW1 Satish, who has acted as pancha to spot panchanama
Exhibit 32, deposed regarding he being called at Railway Station
Aurangabad on 04.06.2015. He claims regarding coming across dead
body in a passenger train on 04.06.2015.
12. According to the father PW2 Dagdu, his deceased son Govind
left Hanmantwadi Tanda to attend marriage of cousin father-in-law
which was fixed on 04.06.2015. He stated that his cousin brother
Babu received phone call from relative informing that Govind has
been killed at his in-laws' village. However, who was the relative who
gave this information to Babu on phone has not been named by
father. Who has killed Govind at his in-laws' village has also not been
stated to father-informant who has apparently lodged report against
accused. When Govind died is also not known to this witness.
However, he stated that he and other relatives went to Bothi Tanda
and approached father-in-law of Govind i.e. appellant Mohan to make
inquiries about his son and thereafter, he claims that, even on search
when son was not found, they approached Chakur Police Station and
there they learnt from police that wife of deceased, namely, Chaya
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had already filed a missing report three days back. He further
deposed that Vasant Rathod, who is his brother-in-law, met him and
told about receipt of phone call from Vasant's brother-in-law
informing news item about a dead body found in Hyderabad-
Aurangabad train and said Vasant asked this witness to send
photograph of Govind to his brother-in-law, which was duly
forwarded and then this witness claims that Vasant informed that the
dead body was of Govind and so they all came to Aurangabad. He
approached police, who took him to Ghati Hospital where he
identified the body of his son and thereafter lodged report Exhibit 50
i.e. complaint against wife of Govind, his in-laws and brother-in-law.
PW2 Dagdu in his cross has answered that Govind did not
return to Hanmantwadi Tanda after 28.05.2015. He is unable to give
name of the relative who made phone call to Babu. He admitted that
when he approached police at Chakur, that time Sopan and Vasant
were with him. He admitted that dead body was found in a passenger
train. Rest is all denial.
13. PW4 Laxman is brother of deceased and his evidence is at
Exhibit 58. He also seems to be resident of Hanmantwadi Tanda i.e.
where both, his father PW2 Dagdu and deceased also reside.
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According to him, his deceased brother had gone to Bothi Tanda for
marriage of his sister-in-law. It is pertinent to note that PW2 Dagdu
had deposed about deceased going to attend marriage of his cousin
father-in-law. Therefore, son is giving contrary version about the
person to whose marriage deceased left the house. PW4 Laxman
further deposed that there was quarrel between deceased and his
father-in-law, brother-in-law and they killed Govind by assaulting him
with pestle used for grinding chilly and thereafter kept his dead body
in the train. He claims that Keshav, who is son of his maternal aunt,
had learnt about above killing of Govind and Keshav had asked his
uncle Babu as to whether Govind is at Hanmantwadi and later on,
Keshav informed that he learnt that Govind has been killed and
therefore, they all went to Bothi Tanda and then to police station.
Above witness is cross-examined as to how many of them
searched Govind. Suggestions about dispute between deceased and
father on account of partition has been denied alongwith denial of he
himself threatening to kill Govind.
14. Next important witness and also star witness for prosecution is
PW7 Shivaji. Prosecution is very emphatic that he had seen the
occurrence of quarrel as well as assault and therefore there is direct
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eye witness account. Resultantly, we have carefully and meticulously
analyzed his evidence. This witness has deposed that he knew
accused as they reside in front of his house and he also was knowing
deceased who was visiting house of accused. According to him,
whenever Govind came, there used to be quarrel between him and
accused. Further according to him, on 03.06.2015, there was quarrel
between deceased and accused and hearing hue and cry, he went to
the spot and saw accused persons assaulting deceased. He is very
specific that accused Ashok was holding iron pestle used for grinding
chilly and was assaulting Govind with it. He further deposed that
thereafter, accused Chaya called her cousin mother-in-law Meerabai
who tried to rescue the quarrel, but accused Mohan told Meerabai
that deceased had duped him and therefore they will show him.
Thereafter, Meerabai left and accused took Govind in their house.
Witness claims that thereafter he also went to his house and on the
next day, he heard discussion amongst people in the village that
accused killed Govind and kept dead body in Aurangabad railway.
In his cross, he has answered that he tried to rescue the quarrel.
He denied deceased to be his relative. He denied about transaction of
purchase of land by Mohan from him and about receiving
consideration and regarding execution of sale deed. In cross, again he
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answered that he has seen assault by Ashok by means of iron pestle
and deceased to be hit on the right side of head.
15. On appreciating the above substantive evidence of this witness,
it is emerging that he claims himself to be immediate neighbour of
accused and also claims knowing both, accused as well as deceased.
He specifically stated that whenever deceased used to come to the
house of accused, there used to be quarrels between accused and
deceased. However, PW2 Dagdu and PW4 Laxman do not support his
such say. On what account there were differences between deceased
and accused Chaya, i.e. his wife, is not clearly emerging. A third
person/stranger is thus saying about quarrels, which cannot be
accepted. Further, it is to be noted that this witness has not spoken
about date of arrival of Govind and that too for marriage ceremony as
is claimed by PW2 Dagdu and PW4 Laxman. His evidence suggests
that he claims that on hearing hue and cry on 03.06.2015, he went to
the spot. He has not described the spot. He has also not given timing
at which quarrel took place between accused and deceased. According
to him, accused Ashok, who was holding article pestle, used it in
assaulting Govind and role attributed to appellant Mohan is merely
pushing Meerabai who had come to the rescue. No role also is
attributed to accused Chaya i.e. wife of deceased except she giving
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call to Meerabai. Therefore, here, this witness has attributed role only
to Ashok. However, as stated above, his evidence does not show at
what time and at which place assault was carried out. He merely
claims seeing deceased being taken inside the house on 03.06.2015.
Deceased was found dead on 04.06.2015 at Aurangabad
Railway Station in a passenger train after alleged occurrence of
03.06.2015. Till 04.06.2015, where was deceased, in whose custody
and where he was done to death has not come on record. Evidence of
PW7 Shivaji merely shows quarrel and assault by Ashok by means of
pestle. After deceased was seen by this witness being taken by
accused inside the house, there ought to have been further
investigation to reveal whether actually Govind has been done to
death and thereafter by what mode his dead body was taken to
Railway station and it being dumped after keeping it in a gunny bag.
But there is no evidence in this regard. When deceased died has also
not come on record.
When theory of last seen together has been taken recourse to,
then it is duty of prosecution to establish time since death at least by
approximation, but autopsy doctor has not opined about age of
injuries and even time since death, and therefore, in our considered
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opinion, it is not open for prosecution to apply the theory of last seen
together. We also wish to state here that PW7 Shivaji, who claims to
have eye witnessed the occurrence on 03.06.2015, seems to have
given statement to police on 22.06.2015 and not promptly in spite of
claiming to be an eye witness and in spite of claiming hearing
discussion amongst villagers regarding deceased being done to death
and body being transported in a railway in a marriage ceremony
which was allegedly attended by this witness on the very next day. He
has kept silence for almost three weeks.
Therefore, in the light of above discussed several ambiguities in
his testimony, in our opinion, his evidence cannot be relied in a
serious case of murder. In spite of claiming to have intervened in the
quarrel, he is unable to elaborate the reason of quarrel or nature of
quarrel. Therefore, his evidence is unworthy of credence and reliance.
16. Other witness PW15 Waman claims about receiving phone call
regarding Govind hanging himself. His testimony is contrary to the
version of prosecution.
17. PW16 Meerabai has not supported the prosecution.
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18. Rest of the witnesses are panchas and police personnel who had
registered/entertained missing report/AD, have noted FIR and carried
investigation, respectively.
19. Investigating Officer PW17, in his examination-in-chief has
deposed about entertaining suspicion that accused had committed
crime. It is further shocking to note that in spite of FIR by PW2 Dagdu
on 09.06.2015, visit has been paid to the spot on 21.06.2015 i.e.
almost after two weeks and then seizure of alleged article pestle has
been caused i.e. on 21.06.2015. Therefore, there are major lapses on
the part of investigating machinery. IO has not clarified as to what
was the motive which was revealed upon investigation. Learned APP
merely argued that there was quarrel on account of purchasing gift,
but there is no evidence in that regard.
20. Therefore, here, firstly, death of Govind is not proved to be only
and only homicidal. Secondly, last seen together has not been proved
beyond reasonable doubt. So called direct eye witness is unworthy of
credence and therefore, in the totality of all circumstances and quality
of evidence, we are afraid whether charges can at all be said to be
proved. As observed by us and noted in the initial part of the
judgment, final cause of death is received after framing of charge and
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therefore, charge itself was misplaced. Unfortunately, learned trial
Judge lost sight of these crucial aspects. There is no material or
evidence in respect of charge under Section 203 in the entire
chargesheet. However, surprisingly guilt for commission of said
offence is also fastened. Therefore, there is apparently non-
application of mind and failure to appreciate the available evidence in
correct perspective and as required by law. Hence, it is a fit case for
indulgence and accordingly we proceed to pass the following order:
ORDER
I. Both appeals are allowed.
II. The conviction of appellant Ashok @ Dilip s/o Mohan Rathod
for the offences punishable under Sections 302, 201 r/w 34 and 203
r/w 34 of IPC as well as the conviction of appellants Mohan s/o
Dhansing Rathod, Anjana w/o Mohan Rathod and Chaya w/o Govind
Jadhav for the offences punishable under Sections 201 r/w 34 and
203 r/w 34 of IPC, in Sessions Case No. 91 of 2015 dated 14.08.2017
by learned Additional Sessions Judge-3, Latur, stands quashed and set
aside.
III. The appellants stand acquitted of the offence punishable under
Sections 302, 201 r/w 34 and 203 r/w 34, respectively.
IV. The appellant Ashok @ Dilip s/o Mohan Rathod be set at liberty
if not required in any other case.
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V. The appellants in Criminal Appeal No. 431 of 2017 are on bail.
Their bail bonds stand cancelled.
V. Fine amount deposited, if any, be refunded to the appellants
after the statutory period.
VI. We clarify that there is no change as regards the order in
respect of muddemal seized in the matter.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]
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